“The last five local elections took place basically without the participation of the opposition”

“The last five local elections took place basically without the participation of the opposition”
Zemelak Ayitenew Ayele (PhD)

Zemelak Ayitenew Ayele (PhD) is a constitutional lawyer specializing on local governments in Ethiopia. Zemelak did his first degree in Law (LLB) in Addis Ababa University. He has served as an instructor at the Law School of Jimma University before leaving for further studies in South Africa. He earned his second and third degrees in the Western Cape University at the Community Law Center, South Africa. He is currently a post-doctoral research fellow at the same University. Zemelak published various articles on internationally recognized journals dealing with the legal frameworks governing local governments or the lowest tiers of government in Ethiopia (kebeles, woredas, special woredas, zones, and the like) and their performance. He recently published a book entitled “Local Government in Ethiopia: Advancing Development and Accommodating Ethnic Minorities”. Zemelak has recently started to give courses for PhD students at the Center for Federal Studies of the Addis Ababa University. He was also one of the participants in a conference organized by the Center that evaluated how federalism performed in the last 20 years since the FDRE Constitution came into force . Solomon Goshu of The Reporter sat down with Zemelak to discuss his book and issues pertinent to local governments in Ethiopia. Excerpts:

The Reporter: What is the place of local governments in federal systems generally?

Zemelak Ayitenew (PhD): Constitutional recognition of local government in a federal system is the ultimate goal, as one writer said. Many federal systems, specially the old ones, like the US and Australia, do not recognize local governments as a sphere or level of government. Recognizing local government as a level of government is a recent development. New federal or quasi-federal states like Nigeria and South Africa recognized local governments in their constitutions. 

You have mentioned two types of local governments in Ethiopia in your book, namely ethnic local government and regular local government. What makes you classify local governments this way and what is its impact?

The Ethiopian Constitution does not expressly recognize local government as a level of government. However, it is not totally silent on the issue. It implies the establishment of local government in two Articles. On its Article 39 which recognizes the right to self government of ethnic communities and the other is Article 50 (4) which requires the state to establish sub-regional level of government. My argument is that the Constitution implicitly requires the establishment of two types of local government. One is what I call ethnic local government or in another work I did with my colleague Yonathan Fiseha (PhD) we called it Article 39 local government. Article 39 implicitly requires the establishment of that kind of local government. The purpose of this kind of local government is to manage intra-regional ethnic diversity which cannot be addressed through the establishment of regional states. The other type of local government which is implied under Article 50 (4) is a kind of local government which is meant to allow the public to participate. While what I call ethnic local government is supposed to be established only in those multi-ethnic regions and in those particular areas where intra-regional ethnic minorities are found, what I call regular local government is supposed to be established throughout the country. Because in the case of regular local government, the purpose is enhancing democratic participation and providing service delivery. So, it doesn’t matter to which ethnic group you may belong to as long as you need service delivery. 
What is the role of the federal and regional governments towards the powers and functions of the local government?

Local government is basically left to be the competence of the regional states. The Constitution does not envisage the federal government to have a direct say on the establishment of local government. That is why under Article 50 (4) the Constitution requires the states to establish local government. In many federal countries including the USA, Canada, Switzerland and Australia, establishing local government is left to be the competence of regional states. However, in the older federal systems, the constitution is totally silent on local government. So, it is up to the discretion of the states or the sub-national units to determine the tiers, numbers, and nature of the local government system that they want to establish. In the Ethiopian case, around the time when the Constitution was being drafted there was a debate as to what to include regarding local government in the Constitution. Some people argue that local government should be expressly recognized in the Constitution. Others say if we recognize local government expressly, the federal government will get a leeway to interfere in regional governments’ affairs. So, they contend that it should be left to the regional states. The compromise was to leave it to the regional states but to make sure that they just don’t establish mere administrative system with no democratic elements. Rather they suggest putting implicitly that regional states are required to establish democratically constituted level of government. That is how the FDRE Constitution tries to balance the role of regional states and the federal government on local government. 

You also narrate how local government assumed different roles and responsibilities at different phases. What are the factors that led to improve the status of local governments in Ethiopia?

Different political forces triggered the empowerment of local government in Ethiopia. Since EPRDF assumed power, at different stage, different political factors have influenced its decision regarding sub-regional government. There are at least two discernible phases in empowering local government. The first is between 1991 and 2000. During this time, the most important political issue in the country was management of ethnic diversity with a view to ensuring peace and security in the country. So, the whole government structure including the federal structure itself and the whole political discussion with regard to how government should be structured revolved around the ethnic issue. The regional governments were established in such a way that ethnic communities can be accommodated and those which cannot be accommodated through the establishment of regional states again were accommodated through sub-regional territorial and political units. In this period, local government featured as institutional mechanism of managing ethnic diversity not as a level of government. The regional states while more or less recognized the ethnic local governments which include nationality zones and special woredas, they basically created the regular local government as an administrative system not as a level of government. If you see the 1994 regional constitutions woredas and cities were not as such local governments. They were local administrative agents. Starting from 2000 there is a shift in the policy of EPRDF. The ethnic issue became less and less important. Officially, achieving development became the most important factor and political issue. There seems to be a decision to discourage the establishment of ethnic local government and rather to empower the regular local government. And it is around that time, between 2000 and 2002, that the regional states supposedly amended their constitutions with the purpose of empowering woredas especially. It was also around the same time that the poverty reduction policy and the district level decentralization program of the federal government was issued. There was a move from ethnic obsession. Around this time ethnicity became less important whereas development and service delivery became the most important issues. Ethnic local governments were becoming some kind of hindrance and had some kind of inefficiency in terms of service delivery. So, the establishment of new ethnic local government was discouraged. Even there were attempts to amalgamate some ethnic local governments especially in the SNNPR. This is regarding the official rationale for the empowerment of local government. There is less discussed and unofficial reason for the empowerment of local government. That is the Ethio-Eritrea war and the division in the EPRDF specifically in the TPLF. Some people argue that the decentralization program was actually influenced by the division in the political sphere within the ruling party. In the 1994 constitutions of the regional states, the regional executive especially the president was very powerful. He was the speaker of the regional council. Local administrative agencies were directly accountable to him. He was also the head of the executive. When the division occurred in the ruling party some of the regional presidents dissented and stood against the former Prime Minister Meles Zenawi like former presidents of Tigray and SNNPR, namely Gebru Asrat and Abate Kisho. So, the argument is having seen how powerful they were constitutionally speaking and how they can threaten the federal government’s authority, there was a decision to disempower the regional executives. The principle of separation of power was introduced at regional levels in the amended constitutions. So, the regional presidents is no longer both head of the executive and the speaker of the regional council. The other newly introduced system is the establishment of a local level of government as opposed to a local administrative agent which is not accountable directly to the regional government, rather accountable to the people who elected or constituted it. So, the argument is that the empowerment of local government was a calculated measure to disempower the regional executive. 

You argue that even if it is possible to infer from the FDRE Constitution that local governments are not instruments of the federal or regional government, there are concerns in the practice as there is a tendency to consider them as apparatuses to enforce the wishes of the upper level of government. Can you elaborate on it?

Even in constitutional terms, local government is not explicitly recognized as a level of government. It is implied in the Constitution that this level of government should be autonomous and democratically constituted. If you just read Article 50 (4) of the Constitution and don’t connect it with other provisions and the drafting history of that particular provision, you may come up with the conclusion that actually what the Constitution envisages is the establishment of a mere administration system not local government. So, even in constitutional terms, local government is not in a very strong position. My argument is that it is why the regional states treated it as an administrative agency between 1994 and 2000. Had the Constitution been explicit like the constitution of Nigeria which clearly says that local government will be a level of government which is democratically constituted or like South African constitution which dedicates one chapter about the structure, functions, powers, and finances of local government, probably local governments in Ethiopia would have been treated better. Among other things, because it is not constitutionally in a strong position, the actual treatment of local government is also kind of as a step-child of the federal system. It is used to enforce the policies of the regional and federal government especially given the fact that one ruling party controls all levels of government. The ruling party is structured and operates based on the democratic centralism principle which requires a decision to be made at a higher level and to be implemented at a local level. Basically local government is serving and being used for the purpose of implementing the will of the higher levels of government rather than the will of the local community which is supposed to have elected and constituted that level of government. 

Government policies which are prepared under the guidance of EPRDF emphasize on the need for grassroots level public participation to achieve accelerated development in Ethiopia. Local government being the lowest level of government, do these policies help in strengthening the position of these levels of government on the ground?

Even though in terms of constitutional and legal terms there is no clarity, in terms of policy direction, it is clear that local government is meant to serve as a level of government where democratic participation takes place and services are delivered efficiently. However, the existence and function of local government should not depend on mere policy. It should be legally, if possible constitutionally, entrenched. The problem with mere policy is that it can change. Yesterday, local government was not seen as important level of government for democratic participation. Now, it is seen as a level of government which is important for democratic participation. Tomorrow, this may change. There are different measures that are taken with the purpose of enhancing public participation one of which is increasing the size of local councils. The official explanation for this is making local government more accessible to the public. Now, we have more than 3.6 million local representatives’ seats throughout the country. This has increased the democratic participation as many people are represented, you can argue. On the other hand, it has discouraged democratic pluralism. Due to the fact that there are millions of seats in local government councils, only the ruling party can contest in local election. Because of the sheer size of local councils, the other opposition parties are in capable to run for local elections structurally, organizationally, and financially. This has helped the ruling party to stay dominant by controlling local government where any political interaction between local community and any political organization takes place. 

Despite the fact that the opposition is not in a position to compete and win local government seats against EPRDF is well appreciated, one of your works insist that the opposition lack interest even to participate in local elections. What possible factors explain this lack of interest?

The participation of the opposition in local elections is insignificant. As I have argued in one of my opinion pieces, the opposition complains that they face difficulties to participate in the national elections but at the end of the day they still participate. When it comes to local election, at the first sign of harassment they boycott. The last five local elections took place basically without the participation of the opposition. Of course, participating in local elections is more demanding than the national election. Local government is huge in terms of size as it has 3.6 million seats. However, in national elections, we have only a maximum of 550 seats. I don’t think that this is the only reason. On the other hand, they consider controlling the national government will ultimately lead to controlling the local level of government. So, rather than spending time and energy on local government, they just want to participate in the national election. I believe that if the opposition parties are to be successful, they cannot ignore local elections. On the one hand, that is the level of government where they can have direct interaction with the public. On the other hand, they allege every time that it is local authorities which block their interaction with the public. So, if they want to have direct interaction with the public, then they have to control local government.  

Some federalism experts advice that to compete with a highly dominant incumbent like the EPRDF, the opposition has to start claiming local government seats and build on it step by step before controlling the federal government. On the contrary, as you have argued in your works, the opposition has a strategy that anticipates controlling the federal government will definitely result in controlling the local governments. Which approach is advisable?

At the end of the day, it is going to be a political decision. It is a matter of calculation by the political parties as to which way will suit them. For some, it is preferable to start slowly from local government and build up. For others, it is preferable to control the national government and go down from top to local government. I don’t think, I can say this or the other one will work. But what I can say is there are a number of justifications that I can give on why the opposition should not ignore local government. This is the level of government which is creating difficulties, as they allege. If they want to avoid this difficulty, they have to give attention to local government. The other justification for decentralization is it provides a political space where the workability of different political views and programs can be tested. If they start to test their political program at local level and if they are found to be workable, they can make a case for themselves to say that it is working at a local level and will definitely work at regional and federal level. You can test it without putting too much risk, with less expense at local level. 

Many constitutional experts argue that the division of power between the federal government and the regional government in the Constitution lacks clarity. Considering that establishing local government falls under the competence of the regional states, can one attribute some of the problems of local governments to this controversy?

We have a dual federal system. Whatever power and function the regional governments have, it has to come from the Constitution. They can only devolve powers and functions assigned to them to local government. It is up to the regional states to clearly define the powers and functions of local governments. Currently, the powers and functions of the local governments are totally unclear. The regional constitutions do not define what kinds of powers and functions local governments may exercise, what kind of revenue it can raise and use, and whether it can demand as of right from regional states’ budget some kind of equitable share in the form of block grant. It is not also so clear what powers and functions the regional states themselves have. There are some open-ended provisions in the Constitution which provide some kind of leeway for the federal government to enter into the territory of the regional states and to assume power. The Constitution itself is framed in such a way that it  allows the federal government to encroach into the terrain of the regional states power and function. This has been manifested in the recent urban land administration proclamation when the federal government invokes the purpose of creating one economic community as a leeway to engage in the administration of urban land. According to the Constitution, land administration is state power. Even under sub-regional governments, land management is basically the power and functions of local government. So, it directly impacts local government. 

Is there a direct relationship between the way the local governments are structured and the level of minority protection especially regrading those migrated from other areas for different reasons?

In relation to ethnic local government, the Constitution seems to envisage the accommodation of those territorially concentrated ethnic communities. In multi-ethnic regions like SNNPR, Benishangul-Gumuz, Gambella, there are ethnically structured territories. SNNPR, Benishangul, Gambella, Afar, and Amhara regional states established ethnic local governments at zonal, special woreda or nationality zone levels. When it comes to other minorities which are not territorially concentrated especially what we call ethnic migrants or what some writers call exogenous ethnic communities, as a matter of institutional structure, they cannot be accommodated through the establishment of ethnic local government. They are territorially dispersed and belong to different ethnic communities. The question should be are there non-territorial institutional mechanisms and structures for the purpose of accommodating these ethnic migrants. One way of accommodating these ethnic migrants is to protect their individual rights. For that, both the federal and regional constitutions have bill of rights. When it comes to political representation of ethnic migrants, there seems to be some measures taken by the regional states which discourage their political representation. One is quota system. For example, in Oromia 50 percent of city council seats are reserved for ethnic Oromos especially in those cities where ethnic Oromos are found in minority. And 20 percent is reserved for rural kebeles which are dominated by ethnic Oromos. So, practically 70 percent of the city council seats are out of contestation for other individuals belonging to other ethnic communities. On the one hand, this measure seems to be justified. These cities being found in ethnically organized regional states and being centers of administrative offices, schools, and universities, excluding those communities for whom the regional state was established from having some kind of control over the cities will not make sense. On the other hand, this kind of measures with extensive exclusionary provisions puts hurdle on their participation. Its constitutionality may be questioned. 

Are local governments in a p

With regard to financial powers of local governmentosition to raise their own revenue to cover the required costs emanating from the powers and functions entrusted to them?, except some big cities which are financial and economic centers, they are to a large extent dependent on grants from senior levels of government. This is actually the case even in other federations like Nigeria and South Africa. Mostly, local governments are not capable of covering all their expenses from internal revenue. But in other federal countries constitutions the upper level of governments are required to transfer grants to local government. In Ethiopia, local governments’ revenue raising power is not clearly defined. The woredas just exercise administrative power over taxes assigned to regional governments like rural land use fee and agricultural income tax. Since 2001, there is a policy that directs upper levels of governments to transfer block grants to local governments especially woredas. But it is not a constitutional requirement. That means a woreda cannot require the regional state to transfer block grants to it. If a woreda is controlled by an opposition party and the regional state governed by another ruling party, the party governing the regional state may refuse to transfer block grants. And there is no way that the opposition party can enforce that right.